(HC) Aaron Anthony Vrh v. Ndoh ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 AARON ANTHONY VRH, ) Case No.: 1:20-cv-00581-NONE-JLT (HC) ) 12 Petitioner, ) ORDER DISMISSING FIRST AMENDED ) PETITION AND DIRECTING PETITIONER TO 13 v. ) FILE A SECOND AMENDED PETITION ) 14 ROSEMARY NDOH, Warden, ) [THIRTY-DAY DEADLINE] 15 Respondent. ) ) 16 ) 17 Petitioner filed a federal habeas petition in this Court on April 24, 2020. (Doc. 1.) Petitioner 18 filed a first amended petition on May 1, 2020, which appears largely identical to the initial filing. 19 (Doc. 8.) After conducting a preliminary screening, the Court finds that the petition fails to state a 20 cognizable federal claim for relief. Therefore, the Court will dismiss the amended petition and direct 21 Petitioner to file a second amended petition. 22 I. DISCUSSION 23 A. Preliminary Review of Petition 24 Rule 4 of the Rules Governing Section 2254 Cases requires the Court to make a preliminary 25 review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it 26 plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in 27 the district court . . . .” Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The Advisory 28 Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus, 1 either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an 2 answer to the petition has been filed. 3 B. Failure to State a Cognizable Federal Claim 4 The basic scope of habeas corpus is prescribed by statute. Title 28 U.S.C. § 2254(a) states: 5 The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to a 6 judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 7 8 (emphasis added). See also Rule 1 to the Rules Governing Section 2254 Cases in the United States 9 District Court. The Supreme Court has held that “the essence of habeas corpus is an attack by a 10 person in custody upon the legality of that custody . . .” Preiser v. Rodriguez, 411 U.S. 475, 484 11 (1973). 12 To succeed in a petition pursuant to 28 U.S.C. § 2254, Petitioner must demonstrate that the 13 adjudication of his claim in state court 14 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United 15 States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 16 17 28 U.S.C. § 2254(d)(1),(2). In addition to the above, Rule 2(c) of the Rules Governing Section 2254 18 Cases requires that the petition: 19 (1) Specify all the grounds for relief available to the petitioner; (2) State the facts supporting each ground; 20 (3) State the relief requested; (4) Be printed, typewritten, or legibly handwritten; and 21 (5) Be signed under penalty of perjury by the petitioner or by a person authorized to sign it for the petitioner under 28 U.S.C. § 2242. 22 23 Petitioner has failed to comply with Rule 2(c) by failing to specify any ground for relief or the facts 24 supporting his claims. Rule 2(c) requires that each ground for relief be clearly stated, along with 25 providing specific factual allegations that support the grounds for relief. O'Bremski v. Maass, 915 F.2d 26 418, 420 (9th Cir. 1990); United States v. Popoola, 881 F.2d 811, 812 (9th Cir. 1989). Because 27 Petitioner has not clearly set forth his grounds for relief, the Court cannot determine whether the 28 claims have been exhausted in the state courts. 1 In addition to listing his grounds for relief, Petitioner must tell the Court which claims were 2 raised at which court. This information must include the dates of filing and disposition so as to 3 determine whether Petitioner has exhausted his state remedies and is in compliance with the 4 limitations period prescribed by 28 U.S.C. §2244(d)(1). Without this information, the Court cannot 5 proceed to the merits of the petition. 6 Petitioner will be granted an opportunity to file a Second Amended Petition curing these 7 deficiencies. Petitioner is advised that he should entitle his pleading, “Second Amended Petition,” and 8 he should reference the instant case number. 9 II. ORDER 10 Accordingly, the Court ORDERS: 11 1) The first amended petition is DISMISSED; and 12 2) Petitioner is GRANTED thirty days from the date of service of this order to file a second 13 amended petition that complies with this Order. 14 Petitioner is forewarned that his failure to comply with this Order will result in a 15 recommendation that the petition be dismissed pursuant to Local Rule 110. 16 17 IT IS SO ORDERED. 18 Dated: May 14, 2020 /s/ Jennifer L. Thurston 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28